U.S., Canada meeting bi-weekly over disputed closure of Line 5

U.S. and Canadian officials are holding biweekly meetings to discuss the potential closure of Enbridge’s Line 5 oil pipeline through the Straits of Mackinac and the ramifications of the shutdown in the context of a 1977 treaty between the two governments. 

It’s not clear whether the state of Michigan has been a party to those discussions.

The government of Canada in a Monday court filing affirmed its discussions with the U.S. government after the state of Michigan earlier this month questioned the seriousness of Canada’s intent to invoke the treaty. 

“While there have apparently been communications between officials of each government, there is no evidence that negotiations under the treaty itself are in progress,” Attorney General Dana Nessel’s office wrote in a June 2 filing. The filing referenced a Detroit News article in which a spokesperson for the U.S. State Department said the countries were “not engaged in any formal treaty negotiations.”

The Canadian government wrote to Western District Judge Janet Neff on Monday to clarify that discussions between the two countries have been robust, but have not advanced to a formal invocation of the 1977 transit pipelines agreement.

“Canada continues to believe that it would be contrary to the interest of both Canada and the United States, and contrary to the intent of the Treaty, for court proceedings relating to the shutdown to proceed while this diplomatic process is ongoing,” wrote Gordon Giiffin, counsel for the government of Canada.

Canada has become increasingly vocal about its opposition to Gov. Gretchen Whitmer’s order for the closure of the pipeline and, in May, filed an amicus brief asking the court to stall a decision on the case’s jurisdiction until after treaty discussions were complete. 

The 1977 treaty between the two countries bars either nation from interfering in the operations of international oil pipelines.

The 68-year-old dual span through the Straits of Mackinac has been criticized by environmentalists for posing an undue risk of a catastrophic oil spill between Lakes Michigan and Huron. The line can pump up to 540,000 barrels a day of light crude oil and natural gas liquids, some of which originate in Alberta and are transported to Ontario. 

In 2018, Republican former Gov. Rick Snyder entered an agreement with Enbridge that would require the company to build a more than $500 million tunnel to house a new segment of Line 5 in the Straits. 

But Whitmer, who campaigned on promises to shutter the line, revoked the pipeline’s easement in November and ordered it closed by May 13. The Canadian oil giant refused to shut down without a court order and continues to operate. 

Enbridge has argued federal regulators and the U.S.-Canada treaty override state authority and has fought to keep the case in federal court. But Nessel’s office said earlier this month federal interests are too “insubstantial” and the case should be remanded to state court. 

In its Monday letter to court, the Canadian government said numerous discussions have occurred between the two countries regarding the pipeline, including dialogue between Prime Minister Justin Trudeau and President Joe Biden.

Other conversations have occurred, Giffin wrote, between U.S. Secretary of State Anthony Blinken and the Canadian foreign minister, U.S. Attorney General Merrick Garland and the Canadian justice minister, the transport minister for Canada and U.S. Secretary of Transportation Pete Buttigieg, and the natural resources minister of Canada and U.S. Energy Secretary Jennifer Granholm, a former governor of Michigan.

The ambassador of Canada also has reached out to the Department of State and the White House. 

The discussions, Giffin said, “have resulted in the establishment of a bi-lateral process in which representatives of the two countries are meeting bi-weekly to address the potential shutdown, including in the context of the 1977 treaty.”

A formal invocation of the treaty and resulting dispute resolution proceedings remain a possibility, Gordon wrote, but are “not necessary to conduct official and meaningful consultations between the parties regarding the treaty.”